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EXHIBIT 10.28
BUDGET GROUP, INC.
FORM OF EXECUTIVE AGREEMENT BETWEEN BUDGET GROUP, INC. AND
EACH OF XXXXXXX X. XXXXXX, XXXX X. XXXXX AND XXX XXXX
This Executive Agreement ("Agreement") is dated as of
__________, and is entered into by and between __________ ("Executive") and
Budget Group, Inc. ("Budget" or "Company"). Executive and Budget hereby agree to
the following terms and conditions:
1. Purpose of Agreement. The purpose of this Agreement
is to provide Executive specified benefits in the event of Executive's
termination under certain circumstances. It is believed that the existence of
these potential benefits will benefit Budget by discouraging turnover among
executives with Agreements, as well as causing such executives to be more able
to respond to the possibility of a "Change in Control" (as defined in Section
9) without being influenced by the potential effect of a Change in Control on
their job security.
2. Other Rights and Obligations. The rights and
obligations of Executive with respect to Executive's employment by Budget shall
be whatever rights and obligations are negotiated between Budget and Executive
from time to time. The existence of this Agreement, which deals only with
certain rights and obligations subsequent to a termination, shall not be
treated as raising any inference with respect to what rights and obligations
exist prior to a termination, or, except as specifically addressed in this
Agreement, what rights and obligations may exist after termination. Further,
Executive shall not, at any time after termination, be obligated to seek other
employment in mitigation of the amounts payable or other benefits provided for
under any provision of this Agreement and the obtaining of any such other
employment shall in no event effect any reduction of Budget's obligation to
make the payments and to provide the benefits required to be made and provided
under this Agreement, except to the extent provided for in Paragraph 7(c)(4).
3. Benefits Payable Upon Qualifying Termination and
Execution of a Release Agreement.
(a) Subject to Section 3(b), if a Qualifying Termination
(as defined in Section 4 below) occurs, the benefits described in
Sections 6 and 7, shall become payable to Executive. In that event,
and notwithstanding Section 11, this Agreement shall remain in effect
until Executive receives the various benefits to which Executive has
become entitled under the terms of this Agreement. If Executive's
employment terminates and such termination is not a Qualifying
Termination, then this Agreement shall be of no further force or
effect.
(b) Notwithstanding any other provision of this
Agreement, unless Executive executes a Release Agreement (acceptable
to Budget and substantially in the form set forth in Exhibit I) within
21 days after a Qualifying Termination (and does not revoke the
Release Agreement within 7 days after signing it), (1)
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no benefits under Section 6 or Section 7(d), or (f) of this Agreement
shall be paid or provided under any circumstances, (2) the benefits
described in Section 7(c) and (e) shall only be paid or provided for
30 days after a Qualifying Termination , and (3) this Agreement shall
be of no further force and effect. Notwithstanding anything in this
Agreement to the contrary, if Executive fails or refuses to comply
with the obligations provided for in Sections 2 and 3 of the Release
Agreement, or is in violation of the representations and warranties
provided for in Sections 4, 5 and 6 of the Release Agreement, Budget's
obligations as provided for in this Agreement shall immediately cease
and terminate.
4. Qualifying Termination. If, during the term of this
Agreement, Executive's employment terminates, such termination shall be
considered a Qualifying Termination if any of the following events occurs:
(a) If a Change in Control occurs and Executive
voluntarily terminates employment, for Good Reason, within one year
after the event giving rise to Good Reason or Executive's employment
terminates due to death or disability during such one year period. For
purposes of this Agreement, "Disability" shall be defined in
accordance with Budget's long term disability plan and "Good Reason"
shall mean the occurrence of one of the following events without
Executive's prior written consent:
(1) The assignment to Executive of any duties
inconsistent in any material respect with
Executive's position, authority, duties and
responsibilities as they existed in their most
significant form immediately prior to a Change in
Control or any other action by Budget which results
in a material diminution in such position,
authority, duties and responsibilities as they
existed in their most significant form immediately
prior to a Change in Control, excluding for purposes
of this paragraph (1), (x) an assignment of
substantially equivalent position, authority, duties
and responsibilities; or (y) an isolated,
insubstantial and inadvertent assignment or action
which is remedied by Budget promptly after receipt
of notice thereof given by Executive;
(2) Any reduction in (i) Executive's base
salary as it existed immediately prior to a Change
in Control; (ii) Executive's ability to participate
in or to receive benefits from (without any
incremental cost to Executive) incentive plans,
employee benefit plans, expense reimbursement
policies, or other fringe benefits as they existed
immediately prior to a Change in Control, excluding
changes by Budget with respect to any such benefits
which apply to all executives; or (iii) incentive
payments made pursuant to any
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incentive program (which shall be deemed to be
reduced if the annual incentive payments are less
than the average annual incentive paid to Executive
during the term of this Agreement); provided that,
(x) an isolated, insubstantial and inadvertent
reduction in an element of Executive's total
compensation which is promptly remedied after notice
by Executive shall not be deemed a violation of this
paragraph (2), and (y) a reduction in one element of
Executive's total compensation shall not be deemed a
violation of this paragraph (2) if a
counterbalancing increase in another element of
Executive's total compensation simultaneously
occurs;
(b) Executive is involuntarily terminated without
"Cause" during the term of this Agreement. For purposes of this
Section, "Cause" shall mean (1) an act or acts of dishonesty by
Executive in connection with Executive's employment; (2) any conduct
with or against another employee, customer or other person, including
conduct involving moral turpitude, which causes or is likely to cause
Budget embarrassment, liability or damage; or (3) Executive's repeated
failure to perform Executive's duties or to perform in accordance with
direction received from a senior ranking officer of Budget; or
(c) Executive terminates Executive's employment for any
reason whatsoever, including termination due to death or disability,
provided that the Termination Date occurs within one year after a
Change in Control occurs, and prior to an involuntary termination by
the Company for Cause.
5. Notice of Termination. Any termination by Executive
for Good Reason, by Budget for Cause, or by Executive without any reason
following a Change in Control (other than termination due to Executive's death
or disability) shall be communicated by Notice of Termination to the other
party hereto given in accordance with Section 16. For purposes of this
Agreement, a "Notice of Termination" means a written notice which (i) indicates
the specific termination provision in this Agreement relied upon, (ii) to the
extent applicable, sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of Executive's employment under the
provision so indicated and (iii) if the date of termination ("Termination
Date") is other than the date of receipt of such notice, specifies the
Termination Date. The Termination Date shall be the date of receipt of the
Notice or such later date specified in the Notice, which shall not be later
than 90 days after the giving of such Notice. The failure by Executive or
Budget to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
Executive or Budget hereunder or preclude Executive or Budget from asserting
such fact or circumstance in enforcing Executive's or Budget's rights
hereunder.
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6. Severance Payment. Subject to Section 3(b), in the
event of a Qualifying Termination, Budget shall pay Executive an amount equal
to 2 times the sum of (1) Executive's highest annual base salary rate in effect
since March 1, 1999 plus (2) the greater of i) annual average incentive
payments and bonuses (including those that are performance based, discretionary
or otherwise, but excluding those paid under any long-term incentive and stock
option plans) paid to Executive during the three years preceding the
Termination Date (provided that, if this Agreement has not been in effect for
three years, the incentive payments and bonuses shall be based on the incentive
payments and bonuses paid to Executive since March 1, 1999); and ii) the
Executive's annual target bonus or incentive opportunity established for the
year in which the Executive's Termination Date occurs. The amounts due
hereunder ("Severance Payment") shall be paid in cash to Executive in a single
lump sum (less applicable payroll deductions) within 30 days of the Termination
Date, and shall be in lieu of any other severance payment that Executive might
otherwise be entitled to from Budget under the terms of any other severance pay
arrangement or employment agreement.
7. Other Benefits. Subject to Section 3(b), in the
event of a Qualifying Termination, Executive shall be entitled to:
(a) Receive Executive's base salary and a pro rata
portion of Executive's target bonus through the Termination Date, less
applicable payroll deductions.
(b) Receive any unused vacation and holiday pay through
the Termination Date, less applicable payroll deductions.
(c) (1) Except as provided by law (including any
nondiscrimination rules) or by the relevant insurance carrier
(after reasonable efforts by the Company to provide
coverage), continue Executive's participation (and, where
applicable, participation of Executive's eligible dependents)
in the medical, dental, life and disability insurance benefit
programs of Budget which had been made available to Executive
before the Qualifying Termination. This ability to
participate shall continue for a period of 24 months after
the Termination Date ("Completion Date"); if Executive dies
prior to the Completion Date, Executive's dependents, where
applicable, may continue participation until the Completion
Date. In order to so participate, Executive (or dependents,
where applicable) shall pay to Budget (with grace periods
analogous to COBRA) the employee portion of the cost of such
benefits (such portion to be determined in the same manner as
for any other executive participants). Thereafter, Executive
(or Executive's dependents, where applicable) shall be
entitled to elect COBRA coverage.
(2) If the law or the insurance carrier prevents
Executive from participating in a program described in this
clause (c), Budget shall make monthly cash payments to
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Executive (or Executive's dependents, where applicable) equal
to 102% of the entire monthly premium (excluding the employee
portion) applicable to such program until the Completion
Date. Executive (or Executive's dependents, where applicable)
shall be permitted to elect COBRA coverage for such program
(if allowed under the program).
(3) When coverage under each applicable plan expires,
Executive (or Executive's dependents, where applicable) shall
retain the right to purchase individual conversion policies
with respect to any or all of the benefits provided under
said benefit plans to the maximum extent permitted by law or
by the group insurance policies providing such benefits.
(4) Notwithstanding anything contained herein to the
contrary, the benefits provided for in this subparagraph (c),
shall cease prior to the Completion Date in the event
Executive has available substantially similar benefits at a
comparable cost from a subsequent employer.
(d) Receive contributions under the Budget Defined
Contribution Retirement Plan and Budget SavingsPlus (401(k)) Plan (the
"Retirement Plans") if required by the terms for the year in which the
Qualifying Termination occurs. In addition, to the extent any
contributions to the Retirement Plans are not made on behalf of
Executive, but would have been made had Executive remained employed
until and including the Completion Date and made the maximum Section
401(k) contributions under the Plan, Budget shall pay directly to
Executive cash in an amount and at the times consistent with
contributions made for other employees of Budget and in accordance
with the guidelines of the Retirement Plans. Other than the foregoing,
Executive is entitled to no other contribution on Executive's behalf
by Budget to any Budget pension or other retirement plan.
(e) Use of one (1) current model year luxury vehicle
(the "Vehicle") through the earlier of the Completion Date or
Executive's death; if Executive dies prior to the Completion Date,
Executive's spouse, if any, may continue to use such Vehicle through
the Completion Date. During such period, Budget shall (1) provide
Executive with collision (with no deductible if the accident is not
the fault of Executive and with a $250 deductible if the accident is
the fault of Executive) and comprehensive automobile coverage during
the time Executive has the Vehicle, as well as primary automobile
liability coverage in the amount of $50,000 bodily injury per person,
$100,000 bodily injury per accident and $25,000 property damage per
accident, and (2) pay for reasonable maintenance costs incurred by
Executive with respect to the Vehicle, including but not limited to
periodic oil changes.
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(f) Receive professional outplacement services, which
services shall be provided by a vendor of Budget's choice.
In the event of Executive's death, any cash payments due hereunder shall be
made to the beneficiary or beneficiaries so designated by Executive in a
writing delivered to the Secretary of Budget. If no such beneficiary has been
so designated, or if no designated beneficiary is in existence at the date of
Executive's death, payment shall be made to Executive's surviving spouse, if
any, or to Executive's estate if Executive has no surviving spouse.
8. Gross Up Provision.
(a) If any payment or benefit received or to be received
by Executive in connection with a Change in Control of Budget or the
termination of Executive's employment (whether payable pursuant to the
terms of this Agreement, a stock option plan or any other plan or
arrangement with Budget or with any person whose actions result in a
Change in Control of Budget or with any person affiliated with Budget
or such person (together with the Severance Payment, the "total
payments") will be subject to the excise tax imposed by Section 4999
of the Code, Budget will pay to Executive, within 30 days of any
payments giving rise to the excise tax, an additional amount (the
"gross up payment") such that the net amount retained by Executive,
after deduction of any excise tax on the total payments and any
federal and state and local income and employment tax and excise tax
on the gross up payment provided for in this section, will equal the
total payments.
(b) For purposes of determining the amount of the
gross-up payment, Executive will be deemed to pay federal income taxes
at the highest marginal rate of federal income taxation in the
calendar year that the payment is to be made, and state and local
income taxes at the highest marginal rate of taxation in the state and
locality of Executive's residence on the date of termination or the
date that excise tax is withheld by Budget, net of the maximum
reduction in federal income taxes that could be obtained by deducting
such state and local taxes.
(c) For purposes of determining whether any of the total
payments would not be deductible by Budget and would be subject to the
excise tax, and the amount of such excise tax, (1) total payments will
be treated as "parachute payments" within the meaning of Section
380G(b)(2) of the Code, and all parachute payments in excess of the
base amount within the meaning of Section 280G(b)(3) will be treated
as subject to the excise tax unless, in the opinion of tax counsel
selected by Budget's independent auditors prior to the Change in
Control and acceptable to Executive, such total payments (in whole or
in part) are not parachute payments, or such parachute payments in
excess of the base amount (in whole or in part) are otherwise not
subject to the excise tax, and (2) the value of any non-cash benefits
or any deferred payment will be determined by Budget's
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independent auditors in accordance with Sections 280B(d)(3) and (4) of
the Code.
(d) If the excise tax is subsequently determined to be
less than the amount originally taken into account hereunder,
Executive will repay to Budget, when such reduction in excise tax is
finally determined, the portion of the gross-up payment attributable
to such reduction plus interest on the repayment at the rate provided
in Section 1274(b)(2)(B) of the Code. If the excise tax is determined
to exceed the amount originally taken into account hereunder
(including by reason of any payment the existence or amount of which
cannot be determined at the time of the gross-up payment), Budget will
make an additional gross-up payment in respect of such excess (plus
any interest payable with respect to such excess) when such excess is
finally determined.
9. Change in Control. For the purpose of this
Agreement, a "Change in Control" shall mean:
(a) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange of Xxx 0000, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 30% or more of either (1) the then
outstanding shares of common stock of Budget (the "Outstanding Budget
Common Stock") or (2) the combined voting power of then outstanding
voting securities of Budget entitled to vote generally in the election
of directors (the "Outstanding Budget Voting Securities"); provided,
however, that the following acquisitions shall not constitute a Change
in Control: (1) any acquisition directly from Budget or a corporation
controlled by Budget (the "Budget Group"), except that an acquisition
by virtue of the exercise of a conversion privilege shall not be
considered to be a Change in Control within this paragraph unless the
converted security was itself acquired directly from the Budget Group,
(2) any acquisition by the Budget Group, (3) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by
the Budget Group or (4) any acquisition by any corporation pursuant to
a reorganization, merger or consolidation, if, following such
reorganization, merger or consolidation, the conditions described in
paragraphs (1) and (2) of subsection (c) of this Section 9 are
satisfied; or
(b) Individuals who, as of the date hereof, constitute
the Board of Budget (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that
any individual who becomes a director subsequent to the date hereof
whose election, or nomination for election by Budget's shareholders,
was approved by a vote of at least a majority of the directors of the
Incumbent Board (including Board members previously elected pursuant
to this proviso) shall be considered as though such individual were a
member of the Incumbent Board; but excluding, for this purpose, any
such individual whose
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initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consent by or on behalf of a
Person other than the Board; or
(c) Approval by the shareholders of Budget of a
reorganization, merger or consolidation (a "transaction"), unless,
following such transaction in each case, (1) more than 80% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such transaction and the combined voting
power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Budget Common Stock and Outstanding
Budget Voting Securities immediately prior to such transaction and (2)
no Person (excluding the Budget Group, any employee benefit plan (or
related trust) of Budget Group and any Person beneficially owning,
immediately prior to such transaction, directly or indirectly, 20% or
more of the Outstanding Budget Common Stock or Outstanding Budget
Voting Securities, as the case may be) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares
of common stock of the corporation resulting from such transaction or
the combining voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election of
directors; or
(d) Approval by the shareholders of Budget of (1) a
complete liquidation or dissolution of Budget or (2) the sale or other
disposition of all or substantially all of the assets of Budget,
unless such assets are sold to a corporation and following such sale
or other disposition, the conditions described in paragraphs (1) and
(2) of subsection (c) of this Section 9 are satisfied.
10. Waiver of Invalidity; No Offset.
(a) Inasmuch as the injury caused to Executive in the
event Executive's employment is terminated is difficult or incapable
of accurate estimation at the date of this Agreement, the amounts
provided to be paid hereunder are intended to be severance
compensation and not a penalty, and therefore constitute a good faith
forecast of the harm which might be expected to be caused to
Executive. Accordingly, Budget waives any right to assert against
Executive the invalidity of any payment hereunder by reason of
Executive's failure to seek other employment or otherwise, and to
reduce the amount of any payment hereunder by reason of any
compensation earned by Executive as the result of employment by
another employer after the Termination Date or otherwise.
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(b) Budget's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which Budget may
have against Executive or others.
11. Term of Agreement. This Agreement shall be effective
from the date hereof through September 30, 2002 and may not be amended or
terminated during such period except pursuant to an instrument in writing
executed by all of the parties hereto. The Board of Directors of Budget may, in
its sole discretion and for any reason, provide written notice of termination
(or amendment), effective as of the then applicable expiration date, to
Executive no later than six (6) months before the expiration date of this
Agreement. If written notice is not so provided, this Agreement shall be
automatically extended for an additional twelve months past the applicable
expiration date. This Agreement shall continue to be automatically extended for
an additional twelve months at the end of such twelve month period and each
subsequent twelve month period unless notice is given in the manner described
in this Section. Notwithstanding the preceding sentences of this Agreement,
this Agreement shall automatically be extended past an otherwise applicable
expiration date if a Change in Control, or an event giving rise to Good Reason,
has occurred within twelve (12) months prior to such expiration date. The
extension referred to in the preceding sentence shall be for one year after the
Change in Control, or an event giving rise to Good Reason. For purposes hereof,
the "expiration date" shall be the last effective date of this Agreement, after
having given effect to all of the extension provisions of this Section.
12. Successors. The rights and obligations of Budget
under this Agreement shall inure to the benefit of and shall be binding upon
the successors and assigns of Budget.
13. Governing Law. Except to the extent that federal
law is applicable, this Agreement is made and entered into in the State of
Florida, and the substantive laws of Florida, without regard to conflict of law
provisions, shall govern its validity and interpretation in the performance by
the parties hereto of their respective duties and obligations hereunder.
14. Entire Agreement. Except as provided in a written
benefit plan of Budget, this Agreement (and the Release Agreement) constitute
the entire agreement between the parties respecting the benefits due Executive
(and the obligations of Executive) in the event of a Qualifying Termination,
and there are no representations, warranties or commitments, other than those
set forth herein, which relate to such benefits. This is an integrated
agreement. No provision of this Agreement may be amended or waived except by
written agreement signed by the parties.
15. Arbitration. Any and all controversies, claims or
disputes arising out of or in any way relating to this Agreement shall be
resolved by final and binding arbitration before a single
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arbitrator licensed to practice law and in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (the "AAA"). The
arbitration shall be commenced by filing a demand for arbitration, along with a
statement of claim setting forth the specifics of the claim sought to be
arbitrated, with the AAA within sixty (60) days after the occurrence of the
facts giving rise to any such controversy, claim or dispute. The arbitrator
shall decide all issues relating to arbitrability. If the arbitrator determines
that (x) Budget has breached this Agreement or (y) Budget was unjustified in
failing to make the payments required under this Agreement to Executive, Budget
shall pay to Executive, Executive's costs and expenses, including attorneys'
fees, associated with any such arbitration proceeding and, as liquidated
damages and not as a penalty, an additional amount equal to 10% of the amount
involved in the arbitration with respect to this Agreement.
16. Notices. Any notice or communications required or
permitted to be given to the parties hereto shall be delivered personally or be
sent by United States registered or certified mail, postage prepaid and return
receipt requested, and addressed or delivered to the last known address of
Budget or Executive, as appropriate, or to such other address as either party
may direct by notice to the other pursuant to this section.
17. Captions. The captions of this Agreement are
inserted for convenience and do not constitute a part hereof.
18. Severability.
(a) The parties agree that Section 3(b) of this
Agreement and Sections 2 through 6 of the Release Agreement are a
material part of this Agreement. The parties believe that all
provisions of this Agreement (including Section 3(b)) and the Release
Agreement (if executed and not revoked within 7 days after execution)
are legal, binding and fully enforceable.
(b) If Section 3(b) of this Agreement or Section 2, 3,
4, 5 or 6 of the Release Agreement (or any material part thereof) is
invalid, then this Agreement and the Release Agreement shall be null
and void.
(c) Subject to subsection (b) above, in case any one or
more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any
other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had
never been contained herein and there shall be deemed substituted such
other provision as will most nearly accomplish the intent of the
parties to the extent permitted by the applicable law.
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19. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Agreement.
IN WITNESS HEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first
written above.
BUDGET GROUP, INC.
By /s/ Xxxxxxx Xxxxxx
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XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx (executed 10/1/98)
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XXXX XXXXX
/s/ Xxxx Xxxxx (executed 3/1/99)
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XXX XXXX
/s/ Xxx Xxxx (executed 3/5/99)
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EXHIBIT I
RELEASE AGREEMENT
THIS RELEASE AGREEMENT (hereinafter "Agreement") is made and entered into by
and between __________________ ("Executive") and Budget Group, Inc. ("Budget"),
and shall be effective as of the date of its execution.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. That Budget shall, in full discharge of any and all of its
obligations to Executive, pay to Executive the benefits set forth
in the executive agreement between Budget and Executive ("Executive
Agreement").
2. That in consideration for entering into this Agreement, and for the
monies and benefits described in Section 1 above, Executive:
(a) Except as specifically provided in Sections 7(b) and 7(d) of
the Executive Agreement, waives any right to vacation and/or
holiday pay and, in addition, waives any right to incentive
compensation, including without limitation incentive
compensation under the Annual and the Long Term Incentive
Plans.
(b) Agrees to cooperate fully with Budget to assure a smooth
transition of responsibilities and projects and to otherwise
provide Budget with his full and complete cooperation and
assistance for one year after the Termination Date. Such
cooperation and assistance shall be provided by Executive at
his reasonable convenience and shall not require more than
three (3) consecutive days, or more than ten (10) cumulative
days, without payment by Budget of some form of reasonable
compensation to Executive and/or Executive's future employer
for such excess time; provided, however, that such cooperation
and assistance may be obtained by subpoena served upon
Executive if such a subpoena is required or deemed necessary
by Budget as a result of the actions of any future employer of
Executive. Executive shall cooperate and assist Budget by
providing and communicating to, or for the benefit of, the
senior management of Budget or their designated
representatives, any and all knowledge or information acquired
by Executive during, or as a result of, his employment with
Budget. Such cooperation and assistance shall include, without
limitation, the provision of any such information
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or knowledge to Budget's accountants or attorneys in preparation of
or during the course of any audit process or legal procedure in
which Budget may be, or may become, involved. Any travel, lodging
and out-of-pocket expenses incurred by Executive in fulfilling this
obligation shall be reimbursed to Executive by Budget upon
Executive's submission to Budget of an expense report and receipts,
as appropriate.
(c) Agrees that, during the period from the date of this Agreement
through the Completion Date, he will not, without the prior written
consent of Budget, make or cause to be made any oral or written
statements to any person, firm, corporation, or governmental or
other entity which reflect negatively on Budget or on its
directors, officers, employees, affiliates and related companies,
or which could reasonably be understood to be detrimental to the
business interests of Budget or to its directors, officers
employees, affiliates and related companies.
(d) Agrees to make the Vehicles available for periodic inspection
and/or replacement as Budget may request from time to time and to
return such Vehicles or any replacement Vehicles to Budget on or
before the Completion Date; provided, however, that if Executive
relocates to another city, Budget will reasonably cooperate with
Executive in allowing the inspection, replacement, and/or return of
the Vehicles to take place at the nearest Budget owned and operated
rental location.
(e) Agrees that all other perquisites that had been available to him
as a member of Budget senior management, including but not limited
to social and professional memberships and gasoline and parking
reimbursement, shall terminate as of the Termination Date.
Notwithstanding the foregoing, Executive may continue to use, at
his sole cost and expense, the mobile phones currently in the
Vehicles.
(f) Agrees to refrain, at any time and in any manner, from disclosing
any trade secret of Budget or other confidential and proprietary
business information and material respecting Budget's business of
which Executive has knowledge, where such trade secret or other
confidential and proprietary business information and material was
gained from the files or business operations of Budget or from
Executive otherwise giving
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assistance to another, where such disclosure or assistance could
be prejudicial to Budget or its business, or is in any way related
to any controversy and/or litigation in which Budget is or may
become involved. Notwithstanding the foregoing, Executive may
comply with a court order or subpoena compelling such disclosure
or assistance.
(g) Agrees to deliver to Budget, at the time of the execution of
this Agreement, all documents and materials that relate to Budget,
in Executive's possession, custody, or control; provided, however,
that Executive may keep all documents concerning Budget's
insurance plans, all documents concerning his receipt of wages and
benefits while employed at Budget, and any documents Budget agrees
at its discretion he may keep.
(h) Agrees that the terms and conditions of this Agreement are,
collectively and individually, totally confidential and shall
forever be kept totally confidential and shall not in any manner
or for any reason be disclosed by Executive without the express
prior written consent of Budget, except (x) to members of his
family, his attorneys, and his accountants on a "need to know"
basis, (y) to the Internal Revenue Service, and (z) to anyone
pursuant to a court order or subpoena compelling such disclosure.
This Agreement may be introduced in any proceeding to enforce the
Agreement. Such introduction shall be pursuant to an appropriate
order of confidentiality consistent with the terms of this Section
2(h). If disclosure of this Agreement is compelled pursuant to
service of a subpoena on Executive, then Executive shall
immediately provide written notice to Budget and shall not make
any such disclosure for ten (10) business days in order to give
Budget an opportunity to seek an appropriate protective order,
unless disclosure is required sooner than ten (10) business days
by court order, rule, or regulation, in which case disclosure will
not be made by Executive before the time required by such court
order, rule, or regulation.
3. In further consideration of the payments and benefits provided in this
Agreement, and for other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Executive hereby knowingly, voluntarily, and
willingly releases, discharges, and covenants not to xxx Budget and its
affiliated and related companies, past and present, as well as each
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of their directors, officers, employees, shareholders,
representatives, attorneys, agents, insurers, assigns, and
successors, past and present (collectively hereinafter
referred to as the "RELEASEES"), from and with respect to any
and all accounts, actions, contracts, agreements, obligations,
causes of action and claims whatsoever, whether known or
unknown, suspected or unsuspected, in law or in equity, which
Executive, and his heirs, executors, administrators,
successors, assigns, dependents, descendants, and attorneys
ever had, now have, or hereafter can, shall, or may have
against the RELEASEES, for, upon, or by reason of any matter,
cause, or thing whatsoever from the beginning of the world to
the date of this Agreement, including without limitation any
and all claims (a) arising out of or in any way related to
Executive's employment with Budget or his separation from
Budget; (b) arising out of or in any way related to any claims
for race, national origin, age, sex, religious, disability, or
other form of employment discrimination, including without
limitation any claims under Title VII of the Civil Rights Act
of 1964, as amended, the Age Discrimination in Employment Act,
as amended, the Americans with Disabilities Act of 1990, the
Employee Retirement Income Security Act of 1974, as amended,
the Family and Medical Leave Act of 1993, the National Labor
Relations Act, as amended, and the Illinois Human Rights Act,
or any other federal, state or local law, statute, ordinance,
or administrative regulation; or (c) for severance pay, bonus,
commission, sick leave, holiday pay, vacation pay, life
insurance, disability, health or medical insurance, or any
other fringe benefits; provided however, that nothing in this
Section will affect any rights provided for in this Agreement.
4. Executive represents and warrants that he has not filed or
caused to be filed any complaints, charges or lawsuits with
any court or government agency relating to his employment with
Budget or his separation from Budget or to any claims being
released by him in this Agreement, and that he will not file
or authorize or cause to be filed on his behalf any such
complaints, charges, or lawsuits at any time hereafter
relating to his employment with Budget or his separation from
Budget or to any claims being released by him in this
Agreement.
5. Executive represents and warrants that he has not assigned or
transferred to any person not a party to this Agreement any
claim being released by this Agreement, or any part or portion
of such claim, and that he shall defend, indemnify, and hold
harmless Budget from and against any claim (including the
payment of attorneys' fees and costs actually incurred
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whether or not litigation is commenced) based on or in connection
with or arising out of any such assignment or transfer.
6. Executive represents and warrants that during his employment with
Budget, he has not engaged in any conduct which may be reasonably
construed as "Cause" pursuant to the provisions of paragraph 4(b)
of the Executive Agreement.
7. Notwithstanding anything in this Agreement to the contrary, if
Executive fails or refuses to comply with his obligations as
provided for in Sections 2 and 3 of this Agreement, or violates
any of his representations and warranties as provided for in
Sections 4, 5, and 6 of this Agreement, Budget's obligations as
provided for in this Agreement and the Executive Agreement
shall immediately cease and terminate.
8. This Agreement shall be interpreted, construed, and enforced under
the substantive laws of the State of Florida, without regard to
conflict of law provisions.
9. Executive and Budget expressly agree that, except to the extent
this Agreement imposes obligations upon the parties, this
Agreement shall never, at any time, for any purpose whatsoever, be
considered as an admission of liability or responsibility of the
parties.
10. Any and all controversies, claims or disputes arising out of or in
any way relating to this Agreement shall be resolved by final and
binding arbitration before a single arbitrator licensed to
practice law and in accordance with the Commercial Arbitration
Rules of the American Arbitration Association (the "AAA"). The
arbitration shall be commenced by filing a demand for arbitration
with the AAA within sixty (60) days after the occurrence of the
facts giving rise to any such controversy, claim or dispute. The
arbitrator shall decide all issues relating to arbitrability. If
the arbitrator determines that Budget has breached this Agreement
Budget shall pay to Executive, his costs and expenses, including
attorney's fees, associated with any such arbitration proceedings,
and, as liquidated damages and not as a penalty, an additional
amount equal to 10% of the amount involved in the arbitration with
respect to this Agreement.
11. (a) The parties agree that Section 3(b) of the Executive
Agreement and Sections 2 through 6 of the Release Agreement are a
material part of this Agreement. The parties believe that all
provisions of the Executive Agreement (including Section 3(b)) and
the Release Agreement are legal, binding and fully enforceable.
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(b) If Section 3(b) of the Executive Agreement or Section 2, 3,
4, 5 or 6 of the Release Agreement (or any material part
thereof) is invalid, then this Release Agreement and the
Executive Agreement shall be null and void.
(c) Subject to subsection (b) above, in case any one or more of
the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or enforceable in other
respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained
herein and there shall be deemed substituted for such other
provision as will most nearly accomplish the intent of the
parties to the extent permitted by the applicable law.
12. Except as provided in a written benefit plan of Budget, this
Agreement (and the Executive Agrement) constitute the entire
agreement between the parties respecting the benefits due
Executive, and obligations of Executive, in the event of a
Qualifying Termination, and there are not representations,
warranties or commitments, other than those set forth herein,
which relate to such benefits. This is an integrated agreement.
No provision of this Agreement may be amended or waived except by
written agreement signed by the parties.
13. This Agreement may be executed in counterparts, and each
counterpart, when executed, shall have the effect of a signed
original. Photograhic copies of such signed counterparts may be
used in lieu of the original for any purpose.
14. EXECUTIVE EXPRESSLY AGREES THAT HE HAS CAREFULLY READ THIS
AGREEMENT, HAS BEEN PROVIDED WITH THE OPPORTUNITY TO CONSULT WITH
AN ATTORNEY BEFORE ENTERING INTO THIS AGREEMENT, AND FULLY
UNDERSTANDS THE FINAL AND BINDING EFFECT OF THE TERMS AND
PROVISIONS CONTAINED IN THIS AGREEMENT. FURTHER, EXECUTIVE
REPRESENTS AND AGREES THAT THE ONLY PROMISES MADE TO HIM ARE THOSE
STATED ABOVE AND THAT EXECUTIVE IS SIGNING THIS AGREEMENT
VOLUNTARILY AND WITHOUT PRESSURE OR COERCION BY BUDGET OR ITS
OFFICERS, AGENTS, EXECUTIVES, DIRECTORS, OR ANYONE ELSE ACTING
ON THEIR BEHALF.
15. SPECIAL NOTICE TO EXECUTIVE (AS REQUIRED BY LAW FOR EXECUTIVES
AGED 40 AND OLDER):
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(a) You should consult with an attorney prior to signing this
Agreement and regarding your release of claims as provided in
this Agreement.
(b) You were given a copy of this Agreement and you represent that
you have been given a period of twenty-one (21) days (or
forty-five (45) days if part of a group termination) after
receipt of the initial copy of this Agreement to consider the
terms of this Agreement before you sign it, and that you elect
to execute this Agreement on this date.
(c) You are entitled, within 7 days after you sign this Agreement, to
revoke the release and discharge provided for in Section 3 above
as it relates to any claim you may have under the Age
Discrimination in Employment Act, as amended and the Agreement
will not become effective or enforceable until the revocation
period has expired; provided, however, that such revocation will
cancel this Agreement and the Executive Agreement in their
entirety.
16. Capitalized terms not defined herein shall be defined in accordance
with the Executive Agreement.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have
executed this Agreement as of the date set forth herein.
BUDGET GROUP, INC. EXECUTIVE
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Date: Date:
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